Priority Business Services, a staffing agency, provides industrial staffing to hundreds of companies in a variety of industries, including distribution, light manufacturing, food service, maintenance, and clerical positions. Priority has approximately 3,500 employees placed in jobs on any given week, with a database of approximately 360,000 employees.
Rene Bolanos began work for Priority in mid-2013. He suffered an injury in January 2014 while working for one of Priority’s customers. He was released to work with restrictions, which Priority initially accommodated by assigning him to the staffing office.
However, Bolanos asserted that in February 2014, he was diagnosed with a hernia. Priority refused to place him back in the staffing office, informed him that it could no longer accommodate him with his restrictions, and removed him from work. Bolanos further alleged that he was released to work with no restrictions, in November 2014, but Priority never gave him another job. Moreover, Priority told him in December 2014 that he would have to reapply to be returned to work. Bolanos did so in February 2015, but Priority then told him he “did not qualify to go back to work.”
Bolanos sued and asserted the following causes of action: (1) disability discrimination in violation of FEHA; (2) retaliation in violation of FEHA; (3) retaliation in violation of the California Family Rights Act (CFRA) (§ 12945.2 et seq.); (4) failure to prevent discrimination and retaliation in violation of FEHA; (5) failure to provide reasonable accommodation in violation of FEHA; (6) failure to engage in a good faith interactive process in violation of FEHA; (7) declaratory judgment; and (8) wrongful termination in violation of public policy. He sought economic damages, damages for emotional distress, and punitive damages, in total estimated to exceed $1,000,000. Bolanos separately filed a statement of damages seeking $5,000,000 in punitive damages.
The jury found in favor of Bolanos on his fifth cause of action for failure to provide reasonable accommodation and his sixth cause of action for failure to engage in an interactive process. The jury awarded Bolanos damages totaling $39,966.84, split evenly between past economic and non-economic loss. The jury found Bolanos was not entitled to punitive damages.The court granted Priority’s request to offset the judgment by $8,500, the amount paid to Bolanos in worker’s compensation benefits. The court found that Bolanos was the prevailing party and awarded attorney fees in the amount of $231,470.50.
Priority appealed, but the Court of Appeal affirmed in the unpublished case of Bolanos v. Priority Business Services.
Under FEHA it is an unlawful employment practice for an employer ‘to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. It is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation. Once the interactive process is initiated, the employer’s obligation to engage in the process in good faith is continuous, and extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.